Criminal charges against former Philadelphia Common Pleas Court Judge Willis W. Berry Jr. should be dismissed, his attorney argued in court Monday, as the judge's case headed toward an April 13 trial.
Senior Montgomery County Judge S. Gerald Corso, presiding over the case at the Criminal Justice Center, declined to immediately rule on lawyer Samuel C. Stretton's request. Corso said he was taking under advisement the request to drop theft-of-services and conflict-of-interest charges against Berry.
Berry is accused of illegally using his judicial secretary to manage his rental properties for 10 years, often from a desk in the courthouse. Berry was running for state Supreme Court when The Inquirer published a story revealing his side business and how it was being tended to by court staff.
If tried and convicted, Berry could potentially lose the $6,010 monthly pension he has been receiving since he retired in 2012.
Stretton argued that the conflict-of-interest statute should not apply because Berry already received a four-month suspension in 2009 from the Court of Judicial Discipline. That entity has primacy, Stretton argued, in the prosecution of judges.
The Pennsylvania Attorney General's Office filed criminal charges five years later, in May 2014, which Stretton deemed impermissible.
"They have tried to make it a criminal matter when it is already regulated by the Code of Judicial Conduct," Stretton said.
With regard to the theft-of-services allegation, Stretton said that there was no bribery, there were no kickbacks, and that Berry's former secretary juggled the real estate tasks alongside her court duties.
"There's no indication that she couldn't get her work done," Stretton said.
Deputy Attorney General Daniel J. Dye said prosecutors had every right to bring a criminal case after Berry was disciplined administratively by a judicial oversight agency.
"That does not limit the commonwealth from being able to prosecute that conduct," Dye said.
Dye also disputed the notion that it was not fraud as long as Berry's secretary also completed her court duties.
"When a member of the public goes into the voting booth and votes for an elected representative . . .," Dye said, "they expect a day's work for a day's pay."
The public has the right to know, the prosecutor added, "that elected official is not using that resource of a secretary to run a business on the side."
The argument that judges should be carved out as exempt from prosecution under the state's conflict-of-interest statute, Dye added, was wrong.
"That robe is not a shield for a judge to hide behind," he said.
Berry sat at a defendant's table, his head craned back and his eyes closed for long stretches. During a brief recess, Berry did not so much as flinch when approached by a reporter.
"Don't ask me no questions," he said.